EN BANC

[G.R. No. 139070. May 29, 2002.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL LEE,

accused-appellant.

Solicitor General for plaintiff-appellee.

Benjamin A. Opena counsel for Herminia L. Marquez.
Pajares Asual & Adaci for accused-appellant.

SYNOPSIS

Accused-appellant was convicted of the crime of murder for the death of

Joseph Marquez and sentenced to death. On appeal, accused-appellant assailed
the credibility of Herminia Marquez, the lone prosecution eyewitness.

The Supreme Court held that Herminia's testimony was positive, clear and
straightforward. She did not waver in her narration of the shooting incident,
neither did she waffle in recounting her son's death. She was subjected by
defense counsel to rigorous cross and re-cross examinations and yet she stuck
to her testimony given in the direct examination. Moreover, as between
Herminia's testimony in open court and her sworn statement, any inconsistency
therein does not necessarily discredit the witness. Affidavits are generally
considered inferior to open court declarations because affidavits are taken ex-
parte and are almost always incomplete and inaccurate. Oftentimes, they are
executed when the affiant's mental faculties are not in such a state as to afford
him a fair opportunity of narrating in full the incident that transpired. They are
usually not prepared by the affiant himself but by another who suggests words
to the affiant, or worse, uses his own language in taking the affiant's
statements.

The Supreme Court affirmed the decision of the trial court convicting
accused-appellant of the crime of murder, but modified the penalty of death to
reclusion perpetua.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT

ADVERSELY AFFECTED BY INCONSISTENCY BETWEEN THE TESTIMONY OF
WITNESS IN OPEN COURT AND HER SWORN STATEMENT; CASE AT BAR. —
Between Herminia's testimony in open court and her sworn statement, any
inconsistency therein does not necessarily discredit the witness. Affidavits are
generally considered inferior to open court declarations because affidavits are
taken ex-parte and are almost always incomplete and inaccurate. Oftentimes,
they are executed when the affiant's mental faculties are not in such a state as
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 to afford him a fair opportunity of narrating in full the incident that transpired.
They are usually not prepared by the affiant himself but by another who
suggests words to the affiant, or worse, uses his own language in taking the
affiant's statements.

2. ID.; ID.; CHARACTER EVIDENCE; NOT GENERALLY ADMISSIBLE;

EXCEPTIONS IN CRIMINAL CASES. — Character evidence is governed by Section
51, Rule 130 of the Revised Ru les on Evidence, viz: "Section 51. Character
evidence not generally admissible; exceptions: — (a) In Criminal Cases: (1) The
accused may prove his good moral character which is pertinent to the moral
trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may
not prove his bad moral character which is pertinent to the moral trait involved
in the offense charged. (3) The good or bad moral character of the offended
party may be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged. . . . ."
3. ID.; ID.; ID.; CHARACTER, DEFINED. — Character is defined to be the
possession by a person of certain qualities of mind and morals, distinguishing
him from others. It is the opinion generally entertained of a person derived
from the common report of the people who are acquainted with him; his
reputation.
4. ID.; ID.; ID.; GOOD MORAL CHARACTER, DEFINED. — "Good moral
character" includes all the elements essential to make up such a character;
among these are common honesty and veracity, especially in all professional
intercourse; a character that measures up as good among people of the
community in which the person lives, or that is up to the standard of the
average citizen; that status which attaches to a man of good behavior and
upright conduct.
5. ID.; ID.; ID.; GENERALLY ADMISSIBLE IN SEX OFFENSES. — In rape
and acts of lasciviousness or in any prosecution involving an unchaste act
perpetrated by a man against a woman where the willingness of a woman is
material, the woman's character as to her chastity is admissible to show
whether or not she consented to the man's act. The exception to this is when
the woman's consent is immaterial such as in statutory rape or rape with
violence or intimidation. In the crimes of qualified seduction or consented
abduction, the offended party must be a "virgin," which is "presumed if she is
unmarried and of good reputation," or a "virtuous woman of good reputation."
The crime of simple seduction involves "the seduction of a woman who is single
or a widow of good reputation, over twelve but under eighteen years of age . .
." The burden of proof that the complainant is a woman of good reputation lies
in the prosecution, and the accused may introduce evidence that the
complainant is a woman of bad reputation.
6. ID.; ID.; ID.; GENERALLY ADMISSIBLE IN HOMICIDE CASES. — In
homicide cases, a pertinent character trait of the victim is admissible in two
situations: (1) as evidence of the deceased's aggression; and (2) as evidence of
the state of mind of the accused. The pugnacious, quarrelsome or trouble-
seeking character of the deceased or his calmness, gentleness and peaceful
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 nature, as the case may be, is relevant in determining whether the deceased or
the accused was the aggressor. When the evidence tends to prove self-defense,
the known violent character of the deceased is also admissible to show that it
produced a reasonable belief of imminent danger in the mind of the accused
and a justifiable conviction that a prompt defensive action was necessary.
7. ID.; ID.; ID.; PROOF OF VICTIM'S BAD MORAL CHARACTER,
IRRELEVANT TO DETERMINE THE PROBABILITY OR IMPROBABILITY OF THE
KILLING IN CASE AT BAR. — In the instant case, proof of the bad moral
character of the victim is irrelevant to determine the probability or
improbability of his killing. Accused-appellant has not alleged that the victim
was the aggressor or that the killing was made in self-defense. There is no
connection between the deceased's drug addiction and thievery with his violent
death in the hands of accused-appellant. In light of the positive eyewitness
testimony, the claim that because of the victim's bad character he could have
been killed by any one of those from whom he had stolen, is pure and simple
speculation.
8. ID.; ID.; ID.; ID.; NOT NECESSARY IN CASE OF MURDER COMMITTED
WITH TREACHERY AND PREMEDITATION. — [P]roof of the victim's bad moral
character is not necessary in cases of murder committed with treachery and
premeditation. In People v. Soliman, a murder case, the defense tried to prove
the violent, quarrelsome or provocative character of the deceased. Upon
objection of the prosecution, the trial court disallowed the same. The Supreme
Court held: ". . . While good or bad moral character may be availed of as an aid
to determine the probability or improbability of the commission of an offense
(Section 15, Rule 123), such is not necessary in the crime of murder where the
killing is committed through treachery or premeditation. The proof of such
character may only be allowed in homicide cases to show "that it has produced
a reasonable belief of imminent danger in the mind of the accused and a
justifiable conviction that a prompt defensive action was necessary (Moran,
Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not
apply to cases of murder."

9. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — In the case at bar, accused-
appellant is charged with murder committed through treachery and evident
premeditation. The evidence shows that there was treachery. Joseph was
sitting in his living room watching television when accused-appellant peeped
through the window and, without any warning, shot him twice in the head.
There was no opportunity at all for the victim to defend himself or retaliate
against his attacker. The suddenness and unexpectedness of the attack
ensured his death without risk to the assailant. Following the ruling in People v.
Soliman, where the killing of the victim was attended by treachery, proof of the
victim's bad character is not necessary. The presence of this aggravating
circumstance negates the necessity of proving the victim's bad character to
establish the probability or improbability of the offense charged and, at the
same time, qualifies the killing of Joseph Marquez to murder.

10. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT

PREMEDITATION; NOT APPRECIATED IN CASE AT BAR. — As to the aggravating
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 circumstance of evident premeditation, this cannot be appreciated to increase
the penalty in the absence of direct evidence showing that accused-appellant
deliberately planned and prepared the killing of the victim.

11. REMEDIAL LAW; CRIMINAL PROCEDURE; COMPLAINT OR

INFORMATION; MUST SPECIFY THE QUALIFYING AND AGGRAVATING
CIRCUMSTANCES IN THE COMMISSION OF THE OFFENSE. — Neither can the
aggravating circumstance of dwelling found by the trial court be applied in the
instant case. The Information alleges only treachery and evident premeditation,
not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Ru les of Criminal
Procedure, a complaint or Information must specify the qualifying and
aggravating circumstances in the commission of the offense. The Revised Ru les
of Criminal Procedure took effect on December 1, 2000, and Section 8, Rule
110 is favorable to the accused. It may be applied retroactively to the instant
case.

DECISION

PUNO, J : p

On automatic review is the decision of the Regional Trial Court, Caloocan

City, Branch 127 in Criminal Case No. C-54012 (98), which sentenced accused-
appellant Noel Lee to death for the murder of Joseph Marquez.

On May 27, 1998, an Information was filed against accused-appellant

charging him with the crime of murder committed as follows: DTSaIc

"That on or about the 29th day of September 1996, in Kalookan

City, Metro Manila, and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, with treachery and
evident premeditation did then and there willfully, unlawfully and
feloniously attack and shoot one JOSEPH MARQUEZ y LAGANDI, with
the use of a handgun, thereby inflicting upon the latter serious physical
injuries, which ultimately caused the victim's death.
CONTRARY TO LAW." 1

Accused-appellant pleaded not guilty to the charge. At the trial, the

prosecution presented the following witnesses: (a) Herminia Marquez, the
mother of the victim; (b) Dr. Darwin Corpuz, a resident doctor at the Manila
Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a police officer who
examined the crime scene; and (d) Dr. Rosaline Cosidon, a medico-legal officer
of the Philippine National Police (PNP) Crime Laboratory.
The prosecution established the following facts: At 9:00 in the evening of
September 29, 1996, Herminia Marquez, 46 years of age and her son, Joseph,
26 years of age, were in the living room of their house located at No. 173
General Evangelista St., Bagong Barrio, Caloocan City. The living room was
brightly lit by a circular fluorescent lamp in the ceiling. Outside their house was
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 an alley leading to General Evangelista Street. The alley was bright and bustling
with people and activity. There were women sewing garments on one side and
on the other was a store catering to customers. In their living room, mother and
son were watching a basketball game on television. Herminia was seated on an
armchair and the television set was to her left. Across her, Joseph sat on a sofa
against the wall and window of their house and the television was to his right.
Herminia looked away from the game and casually glanced at her son. To her
complete surprise, she saw a hand holding a gun coming out of the open
window behind Joseph. She looked up and saw accused-appellant Noel Lee
peering through the window and holding the gun aimed at Joseph. Before she
could warn him, Joseph turned his body towards the window, and
simultaneously, appellant fired his gun hitting Joseph's head. Joseph slumped
on the sofa. Herminia stood up but could not move as accused-appellant fired a
second shot at Joseph and three (3) shots more — two hit the sofa and one hit
the cement floor. When no more shots were fired, Herminia ran to the window
and saw accused-appellant, in a blue sando, flee towards the direction of his
house. Herminia turned to her son, dragged his body to the door and shouted
for help. With the aid of her neighbor and kumpare, Herminia brought Joseph to
the MCU Hospital where he later died.

Police investigators arrived at the hospital and inquired about the

shooting incident. Herminia told them that her son was shot by Noel Lee. From
the hospital, Herminia went to the St. Martin Funeral Homes where Joseph's
body was brought. Thereafter, she proceeded to the Caloocan City Police
Headquarters where she gave her sworn statement about the shooting. 2

Upon request of the Caloocan City police, a post-mortem examination was

made on Joseph's body. Dr. Rosaline O. Cosidon, a medico-legal officer of the
PNP Crime Laboratory Service made the following findings:
"FINDINGS:
Fairly developed, fairly nourished male cadaver in rigor mortis
with postmortem lividity at the dependent portions of the body.
Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle puncture
mark was noted at the dorsum of the right hand.

HEAD:
(1) Gunshot wound, frontal region, measuring 0.5 x 0.5
cm, just right of the anterior midline, 161 cm from heel, with an
upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1
cm medially and inferiorly directed posteriorwards, downwards
and to the left fracturing the frontal bone, lacerating the brain. A
deformed slug was recovered embedded at the left cerebral
hemisphere of the brain.
(2) Gunshot wound, occipital region, measuring 0.5 x
0.5 cm, 2 cm left of the posterior midline, 162 cm from heel, with
a uniform 0.2 cm upbraded collar, directed slightly
anteriorwards, downwards and lateralwards, fracturing the
occipital bone and lacerating the brain. A deformed slug was
recovered at the left auricular region.
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 (3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm
from the anterior midline.
There are subdural and subarachnoidal hemorrhages.
Stomach is 1/4 full of partially digested food particles and
positive for alcoholic odor.
CONCLUSION:

Cause of death is intracranial hemorrhage as a result of gunshot

wounds. Head." 3

At the time of his death, Joseph was employed as driver by the Santos
Enterprises Freight Services earning P250.00 a day. 4 He left behind two
children by his live-in partner who are now under his mother's care and support.
Herminia spent approximately P90,000.00 for the funeral and burial expenses
of her deceased son. The expenses were supported by receipts 5 and admitted
by the defense. 6
Herminia filed a complaint for murder against accused-appellant. The
complaint, docketed as I.S. No. 96-3246, was however dismissed for
insufficiency of evidence in a Resolution dated December 4, 1996 by Prosecutor
Dionisio C. Sison with the approval of Caloocan City Prosecutor Rosauro J.
Silverio. 7 Herminia appealed the order of dismissal to the Secretary of Justice.
In a letter dated March 16, 1998, Secretary of Justice Silvestre Bello III reversed
and set aside the appealed Resolution and ordered the City Prosecutor of
Caloocan City to file an information for murder against the accused-appellant. 8
Accordingly, the Information was filed and a warrant of arrest issued against
accused-appellant on June 8, 1998. On October 16, 1998, appellant was
arrested by agents of the National Bureau of Investigation (NBI).
Appellant is a well-known figure in their neighborhood and has several
criminal cases pending against him in Caloocan City. He was charged with
frustrated homicide in 1984 and attempted murder in 1989. 9
For his defense, accused-appellant presented two witnesses: (a) Orlando
Bermudez, a neighbor; and (b) himself. He denies the killing of Joseph Marquez.
He claims that from 8:00 to 10:00 in the evening of September 29, 1996, he
was in his house located at 317 M. de Castro St., Bagong Barrio, Caloocan City.
He was having some drinks with his neighbor, Orlando Bermudez, and his
driver, Nelson Columba. They were enjoying themselves, drinking and singing
with the videoke. Also in the house were his wife, children and household help.
At 10:00 P.M., Orlando and Nelson went home and accused-appellant went to
sleep. He woke up at 5:30 in the morning of the following day and learned that
Joseph Marquez, a neighbor, was shot to death. To appellant's surprise, he was
tagged as Joseph's killer. 10

Accused-appellant had known the victim since childhood and their houses
are only two blocks apart. Joseph had a bad reputation in their neighborhood as
a thief and drug addict. Six days before his death, on September 23, 1996,
accused-appellant caught Joseph inside his car trying to steal his car stereo.
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 Joseph scampered away. As proof of the victim's bad reputation, appellant
presented a letter handwritten by his mother, Herminia, addressed to Mayor
Reynaldo Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his
wife, Baby Ruth. In the letter, Herminia was surrendering her son to the Mayor
for rehabilitation because he was hooked on shabu , a prohibited drug, and was
a thief. Herminia was scared that eventually Joseph might not just steal but kill
her and everyone in their household because of his drug habit. 11
The accused-appellant likewise explained the two criminal cases filed
against him in 1984 and 1989. The information for attempted murder was
dismissed as a result of the victim's desistance while in the frustrated homicide
case, the real assailant appeared and admitted his crime. 12
In a decision dated June 22, 1999, the trial court found accused-appellant
guilty and sentenced him to the penalty of death. The court also ordered
appellant to pay the heirs of the victim civil indemnity of P50,000.00, actual
damages of P90,000.00, moral damages of P60,000.00 and exemplary
damages of P50,000.00 and the costs of the suit. Thus:
"WHEREFORE, foregoing premises considered and the
prosecution having established beyond an iota of doubt the guilt of
accused NOEL LEE of the crime of Murder as defined and penalized
under Article 248 of the Revised Penal Code as amended by R.A. 7659,
this court, in view of the presence of the generic aggravating
circumstance of dwelling and without any mitigating circumstance to
offset it, hereby sentences the said accused to suffer the extreme
penalty of DEATH; to indemnify the legal heirs of the deceased civil
indemnity of P50,000.00; to pay the private complainant actual
damages of P90,000.00 plus moral and exemplary damages of
P60,000.00 and P50,000.00, respectively; and to pay the costs.
Consistent with the provisions of Section 10, Rule 122 of the
1985 Rules on Criminal Procedure, as amended, let the entire records
hereof including the complete transcripts of stenographic notes be
forwarded to the Supreme Court for automatic review and judgment,
within the reglementary period set forth in said section.
SO ORDERED. 13

Hence, this appeal. Before us, accused-appellant assigns the following

errors:
I

THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-

SERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE
VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF
OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS
BEYOND BELIEF.
II
THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE
ACCUSED-APPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY
ON THE BIASED DECLARATION OF THE MOTHER WITHOUT
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 CONSIDERING THE SHADY CHARACTER OF THE VICTIM AGAINST WHOM
OTHERS MIGHT HAVE AN AXE TO GRIND.
III
THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT
ON THE ACCUSED-APPELLANT WITHOUT EVEN RAISING A FINGER IN
SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996
ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE
MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT
BEYOND DOUBT.
IV
THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY
HERMINIA MARQUEZ'S VACILLATION WITH RESPECT TO THE "BUTAS NG
BINTANA" AS CONTAINED IN HER SWORN STATEMENT AND THE "BUKAS
NA BINTANA " AS PER HER REPAIRED TESTIMONY — A SERIOUS
PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF
THE ACCUSED-APPELLANT.
V
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME
PENALTY OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS
REASONABLE DOUBT." 14

The assigned errors principally involve the issue of the credibility of

Herminia Marquez, the lone prosecution eyewitness. Accused-appellant claims
that the trial court should not have accepted Herminia's testimony because it is
biased, incredible and inconsistent.

Herminia's testimony on direct examination is as follows:

"xxx xxx xxx
ATTY. OPENA:
Now who was your companion, if any, at that time?

WITNESS:
Me and my son, Joseph Marquez, and the wife upstairs putting the
baby to sleep.
Q: What were you and your son, Joseph, doing then?
A: Watching TV.
Q: Will you please tell us your position, I am referring to you and
your son in relation to the television set where you are watching
the show.
A: We were facing each other while watching television which is on
the left side.
Q: Will you please tell us where exactly was your son, Joseph,
seated while watching television?
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 A: At the end most of the sofa.
Q: The sofa you are referring to is the one near the window.
A: Yes, sir. Dikit lang po .

Q: Will you give us an idea or describe to us that window which you

mentioned awhile ago?

A: Transparent glass.
Q: How high is it from the ground?
COURT:
Which one?
ATTY. OPENA:

The window glass?

WITNESS:
About three feet from the ground.
ATTY. OPENA TO WITNESS:
Q: You said three feet. What do you mean by that? Is that window
elevated from the ground?
A: The same height as this court window which is about three feet
from the ground, and from one another about four by four
window [sic ], three feet by the ground.
Q: Now, you demonstrated by showing a portion, you mean to tell
us that window was mounted on a concrete or hollow block?
A: Hollow block, po.
Q: How high is that hollow block that you were referring to?
COURT:

She said three feet.

ATTY. OPENA TO WITNESS:
Q: Which is higher, that sofa which is posted near the window or
the hollow block?
A: Hollow block.
Q: By how many inches or feet?
A: About half a foot.

Q: You said the sofa was long. Will you please tell us in what
portion of your sofa your son Joseph was seated?

ATTY. VARGAS:
Already answered, your Honor. She said dulo , end of the sofa.
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 COURT:
Sustained.
ATTY. OPENA TO WITNESS:
Q: When you said end of sofa which portion, the left side or the
right side?
A: The right.

Q: Now, while you and your son were watching television, was there
anything unusual that transpired?
A: Yes, sir.

Q: Tell us what was that all about.

A: Mayroon po akong napansin na kamay na nakatutok sa anak ko.
Nakita ko po si Noel Lee na nakatayo sa may bintana.
Q: What do you mean by the word "kamay?"
A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.
Q: What did you do with what you saw?

A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok

ng baril. Tumingin po siya sa may bintana, ganoon po, sabay
putok ng baril.
COURT:
You said he turned the head. Who turned the head? Sino ang
gumanyan sa sinabi mo?
A: (Witness demonstrating that the victim peeped through the
window).
Q: And then?
A: At the same time the firing of the gun [sic ] and I saw my son
slumped.
ATTY. OPENA TO THE WITNESS:

Q: And after your son was slumped, what did you do?
A: I went to my son and carried him to take him to the hospital.
Q: How many shots did you hear?
A: Five shots.
Q: That was prior to helping your son?

A: Yes, sir.
Q: And how many times was your son hit?
ATTY. VARGAS:
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 Q: Objection, your honor. It was already answered. Because
according to her it was five shots.
COURT:

It does not follow that the victim was hit. So, the witness may
answer.

WITNESS:
Twice, Two shots hit my son, two shots on the sofa and one shot
on the cement.
COURT:
How about the other one?
A: Doon po sa semento.
ATTY. OPENA TO WITNESS:

Q: And who fired these shots?

A: Noel Lee.
Q: That Noel Lee that you are referring to, will you please point at
him if he is around?

A: (Witness going down the witness stand and pointing to accused

Noel Lee).

Q: How do you know that it was Noel Lee who shot your son?

A: Kitang kita ko po. Magkatapat po kami.

Q: Will you please describe to us?

A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may

nananahi doon. Nandoon po kaming dalawa ng anak ko
nanonood ng television. (Witness sobbing in tears). Napakasakit
sa akin. Hindi ko man lang naipagtanggol ang anak ko.
COURT:

She was emotionally upset.

ATTY. OPENA:

I'll just make it on record that the witness was emotionally upset.
May I ask if she can still testify?
xxx xxx xxx

WITNESS:
Masakit lang po sa loob ko ang pagkawala ng anak ko.
ATTY. OPENA TO WITNESS:

Q: You saw that the light was bright. Where were those lights
coming from?
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 A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na
bilog. Saka sa labas may nananahi po doon sa alley katapat ng
bahay namin. At saka po doon sa kabila, tindahan po tapat po
namin, kaya maliwanag ang ilaw.
Q: After trying to help your son, what happened?

A: I was able to hold on to my son up to the door. Upon reaching

the door, I asked the help of my kumpare.
Q: Meanwhile, what did the accused do after shooting five times?

A: He ran to the alley to go home.

Q: Now you said he ran to an alley towards the direction of their

house. Do you know where his house is located?
A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City.

Q: How far is that from your residence?

A: More or less 150 to 200 meters.

Q: Where did you finally bring your son?

A: MCU.
Q: When you say MCU, are you referring to MCU Hospital?

A: Yes, sir. MCU Hospital.

Q: At MCU, life-saving devices were attached to my son. Later, after
reaching 11:00, he died.

COURT:
11:00 P.M.?

A: Yes, ma'am.

Q: Same day?
A: Yes, ma'am.

xxx xxx xxx." 15

Herminia's testimony is positive, clear and straightforward. She did not

waver in her narration of the shooting incident, neither did she waffle in
recounting her son's death. She was subjected by defense counsel to rigorous
cross and re-cross examinations and yet she stuck to her testimony given in the
direct examination. She readily gave specific details of the crime scene, e.g.,
the physical arrangement of the sofa and the television set, the height of the
sofa, the wall and the window, because the crime happened right in her own
living room. She explained that she was unable to warn Joseph because she
was shocked by the sight of accused-appellant aiming a gun at her son. The
tragic events unfolded so fast and by the time she took hold of herself, her son
had been shot dead.

A son's death in his mother's house and in her presence is a painful and
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 agonizing experience that is not easy for a mother to forget, even with the
passing of time. Herminia's testimony shows that she was living with a
conscience that haunted and blamed her own self for failing to protect her son
or, at least, save him from death.
Nonetheless, accused-appellant points out inconsistencies in the
eyewitness' testimony. In her affidavit of September 30, 1996 given before PO2
Rodelio Ortiz, Herminia declared that while she and Joseph were watching
television, she saw a hand holding a gun pointed at her son. The hand and the
gun came out of a hole in the window, i.e., "butas ng bintana ." On cross-
examination, Herminia stated that she saw a hand holding a gun in the open
w i n d o w , i.e., "bukas na bintana." According to accused-appellant, this
inconsistency is a serious flaw which cannot be repaired by her statement on
the witness stand.
The inconsistency between her affidavit and her testimony was
satisfactorily explained by Herminia on cross-examination:
"xxx xxx xxx

ATTY. VARGAS

Q: You said that you saw a hand from a hole in the window with a
gun, is that correct?

A: Bukas na bintana . Not from a hole but from an open window.

Q: Madam witness, do you recall having executed a sworn
statement before the police, right after the shooting of your son?

A: Yes, sir.

Q: I will read to you paragraph 8 of your statement which is already

marked as your Exhibit "A" in which is stated as follows:
"Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa
mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996
habang ang aking anak ay nanonood ng palabas sa TV ng
basketball malapit sa kanyang bintana sa labas at ako naman ay
nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti
sa kanya, mayroon akong napansin na kamay na may hawak ng
baril at nakaumang sa aking anak sa may butas ng bintana," do
you recall that?

A: Opo .
Q: What you saw from that butas is a hand with a gun, is that
correct?

A: Opo.

Q: Madam witness, your window is just like the window of this

courtroom?
A: Yes, sir.

Q: In your testimony, you did not mention what part of the window
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 was that hand holding a gun that you saw? Is that correct?

A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong

bintana namin.
Q: So in your sinumpaang salaysay in the statement that you said
butas na bintana is not correct?
A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko,
kinorect ko.
COURT:

You show to the witness. There, butas na bintana .

WITNESS:

Mali po ang letra, Bukas hindi butas.

xxx xxx xxx." 16

Herminia corrected her affidavit by saying in open court that she saw the
hand and the gun coming out of the open window, not from a hole in the
window. In her direct testimony, Herminia presented a photograph of her living
room just the way it looked from her side on the night of the shooting. 17 The
sofa on which Joseph was seated is against the wall, with the window a few
inches above the wall. The window is made of transparent glass with six (6)
vertical glass panes pushing outwards. The entire window is enclosed by iron
grills with big spaces in between the grills. The living room is well-lit and the
area outside the house is also lit by a fluorescent lamp.
Between Herminia's testimony in open court and her sworn statement,
any inconsistency therein does not necessarily discredit the witness. 18
Affidavits are generally considered inferior to open court declarations because
affidavits are taken ex-parte and are almost always incomplete and inaccurate.
19 Oftentimes, they are executed when the affiant's mental faculties are not in

such a state as to afford him a fair opportunity of narrating in full the incident
that transpired. 20 They are usually not prepared by the affiant himself but by
another who suggests words to the affiant, or worse, uses his own language in
taking the affiant's statements. 21
Accused-appellant argues that since Herminia declared in her affidavit
that she saw a hand coming from the window, she did not see the person
holding the gun, let alone who fired it. 22 A complete reading of the pertinent
portion of Herminia's affidavit will refute appellant's arguments, viz:
"xxx xxx xxx

T Isalaysay mo nga sa akin and buong pangyayari?

S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996,
habang ang aking anak ay nanonood ng palabas sa T.V. ng
basketball malapit sa aming bintanan [sic] sa labas, at ako
naman ay nakaupo sa sopa katapat ko siya subalit medyo
malayo ng kaunti sa kanya, mayroon akong napansin akong [sic]
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 kamay na hawak-hawak na baril na nakaumang sa aking anak sa
butas na bintana na nakaawang, maya-maya ng kaunti ay
nakarinig na ako ng putok at ang unang putok ay tumama sa ulo
ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-
sunod na ang putok na narinig ko, mga limang beses, kaya
kitang kita ko siya ng lapitan ko ang aking anak at nakita
ko itong si NOEL LEE, pagkatapos noon ay tumakbo na ito
papalabas ng iskinita papunta sa kanila.
xxx xxx xxx." 23

It is thus clear that when Herminia approached her son, she saw that the
person firing the gun was accused-appellant. Appellant continued firing and
then ran away towards the direction of his house. This account is not
inconsistent with the witness' testimony in open court.
Herminia's declarations are based on her actual account of the
commission of the crime. She had no ill motive to accuse appellant of killing her
son, or at least, testify falsely against appellant. Accused-appellant himself
admitted that he and Herminia have been neighbors for years and have known
each other for a long time. Appellant is engaged in the business of buying and
selling scrap plastic and Herminia used to work for him as an agent. 24 She
would not have pointed to appellant if not for the fact that it was him whom she
saw shoot her son.
Indeed, the Solicitor General points out that it was appellant himself who
had strong motive to harm or kill Joseph. 25 Appellant revealed that six days
before the shooting, he caught Joseph inside his car attempting to steal the
stereo. The alibi that appellant was drinking with his friends that fateful night of
September 29, 1996 does not rule out the possibility that he could have been at
the scene of the crime at the time of its commission. The victim's house is
merely two blocks away from appellant's house and could be reached in several
minutes. 26
The lone eyewitness' account of the killing finds support in the medico-
legal report. Dr. Rosalie Cosidon found that the deceased sustained two
gunshot wounds — one to the right of the forehead, and the other, to the left
side of the back of the victim's head. 27 Two slugs were recovered from the
victim's head. Judging from the location and number of wounds sustained, Dr.
Cosidon theorized that the assailant could have been more than two feet away
from the victim. 28 Both gunshot wounds were serious and fatal. 29
Accused-appellant makes capital of Joseph's bad reputation in their
community. He alleges that the victim's drug habit led him to commit other
crimes and he may have been shot by any of the persons from whom he had
stolen. 30 As proof of Joseph's bad character, appellant presented Herminia's
letter to Mayor Malonzo seeking his assistance for Joseph's rehabilitation from
drugs. On rebuttal, Herminia admitted that she wrote such letter to Mayor
Malonzo but denied anything about her son's thievery. 31
Character evidence is governed by Section 51, Rule 130 of the Revised
Rules on Evidence, viz:
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 "Section 51. Character evidence not generally admissible ;
exceptions: —
(a) In Criminal Cases:

(1) The accused may prove his good moral character

which is pertinent to the moral trait involved in the offense
charged.
(2) Unless in rebuttal, the prosecution may not prove
his bad moral character which is pertinent to the moral trait
involved in the offense charged.

(3) The good or bad moral character of the offended

party may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense charged.

xxx xxx xxx."

Character is defined to be the possession by a person of certain qualities

of mind and morals, distinguishing him from others. It is the opinion generally
entertained of a person derived from the common report of the people who are
acquainted with him; his reputation. 32 "Good moral character" includes all the
elements essential to make up such a character; among these are common
honesty and veracity, especially in all professional intercourse; a character that
measures up as good among people of the community in which the person
lives, or that is up to the standard of the average citizen; that status which
attaches to a man of good behavior and upright conduct. 33

The rule is that the character or reputation of a party is regarded as

legally irrelevant in determining a controversy, so that evidence relating
thereto is not admissible. Ordinarily, if the issues in the case were allowed to be
influenced by evidence of the character or reputation of the parties, the trial
would be apt to have the aspects of a popularity contest rather than a factual
inquiry into the merits of the case. After all, the business of the court is to try
the case, and not the man; and a very bad man may have a righteous cause. 34
There are exceptions to this rule however and Section 51, Rule 130 gives the
exceptions in both criminal and civil cases.

In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that

the accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged. When the accused presents proof of
his good moral character, this strengthens the presumption of innocence, and
where good character and reputation are established, an inference arises that
the accused did not commit the crime charged. This view proceeds from the
theory that a person of good character and high reputation is not likely to have
committed the act charged against him. 35 Sub-paragraph 2 provides that the
prosecution may not prove the bad moral character of the accused except only
in rebuttal and when such evidence is pertinent to the moral trait involved in
the offense charged. This is intended to avoid unfair prejudice to the accused
who might otherwise be convicted not because he is guilty but because he is a
person of bad character. 36 The offering of character evidence on his behalf is a
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 privilege of the defendant, and the prosecution cannot comment on the failure
of the defendant to produce such evidence. 37 Once the defendant raises the
issue of his good character, the prosecution may, in rebuttal, offer evidence of
the defendant's bad character. Otherwise, a defendant, secure from refutation,
would have a license to unscrupulously impose a false character upon the
tribunal. 38

Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to

character evidence of the accused. 39 And this evidence must be "pertinent to
the moral trait involved in the offense charged," meaning, that the character
evidence must be relevant and germane to the kind of the act charged, 40 e.g.,
on a charge of rape, character for chastity; on a charge of assault, character for
peacefulness or violence; on a charge for embezzlement, character for honesty
and integrity. 41 Sub-paragraph (3) of Section 51 of the said Rule refers to the
character of the offended party. 42 Character evidence, whether good or bad, of
the offended party may be proved "if it tends to establish in any reasonable
degree the probability or improbability of the offense charged." Such evidence
is most commonly offered to support a claim of self-defense in an assault or
homicide case or a claim of consent in a rape case. 43
In the Philippine setting, proof of the moral character of the offended
party is applied with frequency in sex offenses and homicide. 44 In rape and
acts of lasciviousness or in any prosecution involving an unchaste act
perpetrated by a man against a woman where the willingness of a woman is
material, the woman's character as to her chastity is admissible to show
whether or not she consented to the man's act. 45 The exception to this is when
the woman's consent is immaterial such as in statutory rape 46 or rape with
violence or intimidation. 47 In the crimes of qualified seduction 48 or consented
abduction, 49 the offended party must be a "virgin," which is "presumed if she is
unmarried and of good reputation," 50 or a "virtuous woman of good
reputation." 51 The crime of simple seduction involves "the seduction of a
woman who is single or a widow of good reputation, over twelve but under
eighteen years of age . . . ." 52 The burden of proof that the complainant is a
woman of good reputation lies in the prosecution, and the accused may
introduce evidence that the complainant is a woman of bad reputation. 53

In homicide cases, a pertinent character trait of the victim is admissible in

two situations: (1) as evidence of the deceased's aggression; and (2) as
evidence of the state of mind of the accused. 54 The pugnacious, quarrelsome
or trouble-seeking character of the deceased or his calmness, gentleness and
peaceful nature, as the case may be, is relevant in determining whether the
deceased or the accused was the aggressor. 55 When the evidence tends to
prove self-defense, the known violent character of the deceased is also
admissible to show that it produced a reasonable belief of imminent danger in
the mind of the accused and a justifiable conviction that a prompt defensive
action was necessary. 56
In the instant case, proof of the bad moral character of the victim is
irrelevant to determine the probability or improbability of his killing. Accused-
appellant has not alleged that the victim was the aggressor or that the killing
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 was made in self-defense. There is no connection between the deceased's drug
addiction and thievery with his violent death in the hands of accused-appellant.
In light of the positive eyewitness testimony, the claim that because of the
victim's bad character he could have been killed by any one of those from
whom he had stolen, is pure and simple speculation.
Moreover, proof of the victim's bad moral character is not necessary in
cases of murder committed with treachery and premeditation. In People v.
Soliman, 57 a murder case, the defense tried to prove the violent, quarrelsome
or provocative character of the deceased. Upon objection of the prosecution,
the trial court disallowed the same. The Supreme Court held:
". . . While good or bad moral character may be availed of as an
aid to determine the probability or improbability of the commission of
an offense (Section 15, Rule 123), 58 such is not necessary in the crime
of murder where the killing is committed through treachery or
premeditation. The proof of such character may only be allowed in
homicide cases to show "that it has produced a reasonable belief of
imminent danger in the mind of the accused and a justifiable conviction
that a prompt defensive action was necessary (Moran, Comments on
the Rules of Court , 1952 ed., Vol. 3, p. 126). This rule does not apply
to cases of murder." 59

In the case at bar, accused-appellant is charged with murder committed

through treachery and evident premeditation. The evidence shows that there
was treachery. Joseph was sitting in his living room watching television when
accused-appellant peeped through the window and, without any warning, shot
him twice in the head. There was no opportunity at all for the victim to defend
himself or retaliate against his attacker. The suddenness and unexpectedness
of the attack ensured his death without risk to the assailant. Following the
ruling in People v. Soliman, where the killing of the victim was attended by
treachery, proof of the victim's bad character is not necessary. The presence of
this aggravating circumstance negates the necessity of proving the victim's
bad character to establish the probability or improbability of the offense
charged and, at the same time, qualifies the killing of Joseph Marquez to
murder.
As to the aggravating circumstance of evident premeditation, this cannot
be appreciated to increase the penalty in the absence of direct evidence
showing that accused-appellant deliberately planned and prepared the killing of
the victim. 60

Neither can the aggravating circumstance of dwelling found by the trial

court be applied in the instant case. The Information alleges only treachery and
evident premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the
Revised Rules of Criminal Procedure, a complaint or Information must specify
the qualifying and aggravating circumstances in the commission of the offense.
61 The Revised Rules of Criminal Procedure took effect on December 1, 2000,
and Section 8, Rule 110 is favorable to the accused. It may be applied
retroactively to the instant case.

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 Accordingly, without the aggravating circumstance of dwelling, the
penalty of death was erroneously imposed by the trial court. There being no
aggravating circumstance, there is no basis for the award of exemplary
damages. 62

IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial
Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed
insofar as accused-appellant Noel Lee is found guilty of murder for the death of
Joseph Marquez. The death sentence imposed by the trial court is however
reduced to reclusion perpetua, there having been no aggravating circumstance
in the commission of said crime. Except for the award of exemplary damages,
the award of civil indemnity, other damages and costs are likewise affirmed.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban,

Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-
Martinez and Corona, JJ., concur.

Footnotes

1. Information, Records, p. 1.

2. Exhibit "A", also Exhibit "2", Folder of Exhibits, p. 5.

3. Exhibit "L", Medico-Legal Report, Folder of Exhibits, p. 29.

4. Exhibit "B", Identification Card, Folder of Exhibits, p. 2; TSN of January 19,

1999, p. 20.
5. Exhibits "D", "D-1" to "D-17", Folder of Exhibits, pp. 4-21.

6. TSN of January 25, 1999, p. 4.

7. Exhibit "5", Folder of Exhibits, pp. 40-45.

8. Exhibit "O", Folder of Exhibits, pp. 32-34.

9. Informations in Criminal Cases Nos. C-23084 (84) and C-32351 (89), Exhibits
"G" and "H", Folder of Exhibits, pp. 23, 24.
10. TSN of April 7, 1999, pp. 3-5.

11. Exhibit "3", Folder of Exhibits, p. 36.

12. TSN of April 7, 1999, p. 13.

13. Decision, p. 16, Rollo , p. 34.

14. Accused-Appellant's Brief, pp. 1-2, Rollo , pp. 89-90.

15. TSN of January 19, 1999, pp. 5-11.

16. TSN of January 26, 1999, pp. 10-12.

17. Exhibit "F", Folder of Exhibits, p. 22-A.

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 18. People v. Templo , 346 SCRA 626, 641 [2000]; People v. Ferrer , 255 SCRA
19, 34 [1996]; People v. Abrenica , 252 SCRA 54, 61 [1996].

19. People v. Jaberto , 307 SCRA 93, 100 [1999]; People v. Silvestre, 307 SCRA
68, 83 [1999]; People v. Mercado , 304 SCRA 504, 527 [1999]; People v.
Botona, 304 SCRA 712, 733 [1999].
20. People v. Ortiz, 266 SCRA 641, 650 [1997].
21. People v. Panela , 346 SCRA 308, 315-316 [2000]; People v. Ortiz, supra.
22. Reply Brief, p. 4, Rollo , p. 339.

23. Exhibit "A", also marked as Exhibit "2", Folder of Exhibits, p. 5; emphasis
supplied.
24. TSN of April 14, 1999, pp. 6-7.

25. Plaintiff-Appellee's Brief, p. 20; Rollo , p. 20.

26. TSN of April 7, 1999, pp. 9-10.

27. TSN of February 15, 1999, pp. 6, 9; Exhibit "M", Sketch of human body,
Folder of Exhibits, p. 30.

28. TSN of February 15, 1999, pp. 6-7.

29. Id., at p. 8.
30. Appellant's Brief, p. 18, Rollo , p. 106.

31. TSN of May 5, 1999, p. 12.

32. Bouvier's Law Dictionary, vol. I, 3rd revision, p. 457 [1914]. Strictly
speaking, character is not synonymous with reputation. "Character" is the
nature of a person, his disposition generally, or his disposition in respect to a
particular trait such as peacefulness or truthfulness. "Reputation" is the
community estimate of him. Under the Federal Rules of Evidence in the
United States, failure to make the distinction may result in confusion.
"Character evidence" is governed by Rule 404 while reputation is a method
of proving character in Rules 405 and 608 — M. Graham, Federal Rules of
Evidence in a Nutshell Series , 2nd ed., p. 94 [1987].
33. 14 C.J.S. Character p. 400 [1939]; also cited in V. Francisco, Revised Rules
of Court of the Philippines, vol. VII, Part I, p. 743. The concept of character
has acquired strong moral overtones over the years owing perhaps to the far
greater frequency with which it is encountered in criminal cases. Inquiry into
the nature of the person has largely been confined to considerations which
can be characterized as either goodness or badness. As psychiatry and
psychology progress and win increasing acceptance in the law, the concept
seems destined to encompass a broadened view of human nature —
Graham, supra, at 94-95.
34. Jones on Evidence, Civil and Criminal, vol. I, 5th ed., Sec. 165, p. 294 [1958]
citing Thompson v. Church , 1 Root (Conn) 312, and other cases; also cited in
O. Herrera, Remedial Law, vol. V, p. 834 [1999].
35. 29 Am Jur 2d, Evidence, Sec. 367 [1994 ed.].

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 36. McCormick on Evidence, vol. 1, 4th ed., Sec. 190, p. 797 [1992]; 29 Am Jur
2d, Evidence, Sec. 365 [1994 ed.]; see also People v. Rabanes, 208 SCRA
768, 780 [1992].

37. Wharton's Criminal Evidence, vol. I, 12th ed., Sec. 221, p. 456 [1955].

38. Wigmore on Evidence, vol. I, 3rd ed., Sec. 58, p. 458 [1940]; see footnotes
for English and American cases.
39. In the case at bar, it was the prosecution that first presented evidence of
the bad moral character of the accused-appellant by citing the two criminal
cases pending against him. The presentation of this evidence, however, was
not objected to by the accused-appellant.
40. Francisco, supra, at 746; see also Wharton's Criminal Evidence , vol. I, 12th
ed., Sec. 221, pp. 459-461 [1955].

41. Francisco, supra citing Wigmore on Evidence (Stud. Txt) 62.

42. With respect to a witness in both criminal and civil cases, his bad moral
character may be proved by either party as provided under Section 11, Rule
132 of the Revised Rules on Evidence — see Regalado, Remedial Law
Compendium, vol. II, p. 631 [1995].
43. R. Lempert & S. Saltzburg, A Modern Approach to Evidence, American
Casebook Series, p. 238 [1982]; McCormick on Evidence, vol. I, 4th ed., Sec.
193, pp. 820-822 [1992] at Sec. 193, pp. 820-822. In the American
jurisdiction, courts in the past generally admitted evidence of the victim's
character for chastity. In the 1970's however, nearly all jurisdictions enacted
"rape shield" laws. The reforms range from barring all evidence of the
victim's character for chastity to merely requiring a preliminary hearing to
screen out inadmissible evidence on the issue. Federal Rule of Evidence 412
lies between these extremes. Reversing the traditional preference for proof
of character by reputation, it bars reputation and opinion evidence of the
victim's past sexual conduct, but permits evidence of specific incidents if
certain substantive and procedural conditions are met. — McCormick on
Evidence, supra, Sec. 193, p. 822.

44. Francisco, supra, at 751.

45. Naval v. Panday, 321 SCRA 290, 302 [1999].

46. Ibid., at 302 citing Wigmore on Evidence (Stud. Text) 63; see also Wharton's
Criminal Evidence , vol. I, 12th ed., Sec. 229 [1955].
47. People v. Taduyo , 154 SCRA 349, 361 [1987]; People v. Blance , 45 Phil.
113, 116 [1923].
48. Article 337, Revised Penal Code.
49. Article 343, Revised Penal Code.

50. II L. Reyes, The Revised Penal Code 862 [1981].

51. Ibid., at 882.
52. Article 338, Revised Penal Code.
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 53. Francisco, supra, at 752.
54. Wharton's Criminal Evidence , vol. I, 12th ed., Sec. 228, p. 474 [1955]; also
cited in Francisco, supra, at 752; see also Herrera, supra, at 839-840.

55. In People v. Gungob , 108 Phil. 1174 [1960], it was found that the character
of the deceased as reflected by his criminal record of theft and physical
injuries was consistent with the provocative acts ascribed to him by the
witnesses.

56. In People v. Sumicad , 56 Phil. 645 [1932], the deceased was a bully of
known violent character, although himself unarmed, he attempted to take
from the accused a bolo, the only means of defense possessed by the latter.
Under the circumstances, it was observed that it would have been an act of
suicide for the accused to allow the bolo to pass into the hands of the victim.

57. 101 Phil. 767 [1957].

58. Now Section 51 (a) (3), Rule 130.
59. People v. Soliman, supra, at 772; emphasis supplied.
60. People v. Platilla, 304 SCRA 339, 354 [1999]; People v. Basao , 310 SCRA
743, 778-779 [1999].
61. People v. Edgar Legaspi , G.R. Nos. 136164-65, April 20, 2001, pp. 14-16;
People v. Joel Bragat , G.R. No. 134490, September 4, 2001, pp. 16-17;
People v. Melecio Sagarino , G.R. Nos. 135356-58, September 4, 2001, pp. 10-
11; People v. Noel Feliciano , G.R. Nos. 127759-60, September 24, 2001, pp.
15-16.
62. Civil Code, Article 2230.

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